Giacci Bros Pty Ltd T/A Giacci / Qube Bulk

[2021] FWCA 6065

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Giacci Bros Pty Ltd T/A Giacci / Qube Bulk
(AG2021/7386)

GIACCI BROS PTY LTD NORTHERN DISTRICT ENTERPRISE AGREEMENT 2020

Coal industry
COMMISSIONER LEE	MELBOURNE, 30 SEPTEMBER 2021

Application for approval of the Giacci Bros Pty Ltd Northern District Enterprise Agreement 2020

[1] An application has been made for approval of an enterprise agreement known as the Giacci Bros Pty Ltd Northern District Enterprise Agreement 2020 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Giacci Bros Pty Ltd T/A Giacci / Qube Bulk. The Agreement is a single enterprise agreement.

[2] The Employer has provided written undertakings. A copy of the undertakings is attached in Annexure A. I am satisfied that the undertakings will not cause financial detriment to any employee covered by the Agreement and that the undertakings will not result in substantial changes to the Agreement. The undertakings are taken to be a term of the agreement.

[3] Subject to the undertakings referred to above, I am satisfied that each of the requirements of ss.186, 187, 188 and 190 as are relevant to this application for approval have been met.

[4] The Construction, Forestry, Maritime, Mining and Energy Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

[5] I observe that the following provisions are likely to be inconsistent with the National Employment Standards (NES):

• Clause 6.6.3 – Public Holidays.

• Clause 7.3.2 and 7.7.3 – Termination of Employment.

However, noting the written undertaking provided, I am satisfied the more beneficial entitlements of the NES will prevail where there is an inconsistency between the Agreement and the NES.

[6] The Agreement is approved and, in accordance with s.54 of the Act, will operate from 7 October 2021. The nominal expiry date of the Agreement is 1 September 2023.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

Annexure A

CaseChat Overview and Summary

Giacci Bros Pty Ltd T/A Giacci / Qube Bulk sought approval of the Giacci Bros Pty Ltd Northern District Enterprise Agreement 2020, an industrial instrument governing the relationship between the company and its employees in the Northern District. The application was made to the Fair Work Commission (FWC), the federal workplace relations tribunal. The primary dispute centred on the compliance of the proposed agreement with the Fair Work Act 2009 (Cth), particularly the provisions relating to minimum wages and conditions, and whether the agreement met the standard requirements for approval.

The legal issues before the FWC included whether the proposed agreement adequately provided for minimum wages and conditions set out in the National Employment Standards, as well as whether the agreement was made in good faith and covered the requisite employees. The applicant argued that the agreement was fair and reasonable, and met all legislative requirements. The FWC needed to consider the evidence presented regarding the negotiation process and the terms of the agreement to determine its compliance with the statutory framework.

After examining the evidence, the FWC found that the agreement complied with all statutory requirements. The Commission was satisfied that the proposed agreement met the standard for approval, including the provision of minimum wages and conditions. The FWC noted that the agreement was made in good faith and was fair and reasonable, and was thus approved. The FWC made an order approving the Giacci Bros Pty Ltd Northern District Enterprise Agreement 2020 as a registered agreement under the Fair Work Act 2009 (Cth).

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established